No. 13-1009
IN THE
Supreme Court of the United States
————
JAMES RISEN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
BRIEF OF ABC, INC., ADVANCE PUBLICATIONS,
INC., THE ASSOCIATED PRESS, BLOOMBERG
L.P., CABLE NEWS NETWORK, INC., CBS
CORPORATION, THE DAILY BEAST COMPANY
LLC, DOW JONES & COMPANY, INC., THE
E.W. SCRIPPS COMPANY, FIRST AMENDMENT
COALITION, FOX NEWS NETWORK, L.L.C.,
GANNETT CO., INC., THE MCCLATCHY COMPANY,
NATIONAL ASSOCIATION OF BROADCASTERS,
NATIONAL PUBLIC RADIO, INC., NBCUNIVERSAL
MEDIA, LLC, THE NEW YORK TIMES COMPANY,
NEWS CORPORATION, NEWSPAPER ASSOCIATION
OF AMERICA, RADIO TELEVISION DIGITAL
NEWS ASSOCIATION, REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS, REUTERS
AMERICA LLC, TRIBUNE COMPANY,
THE WASHINGTON POST AND WNET AS
AMICI CURIAE IN SUPPORT OF PETITIONER
————
LEE LEVINE *
KATHERINE M. BOLGER
JULIE B. EHRLICH
LEVINE SULLIVAN KOCH
& SCHULZ, LLP
1899 L Street, NW, Suite 200
Washington, DC 20036
(202) 508-1100
llevine@lskslaw.com
* Counsel of Record
Counsel for Amici Curiae
[Additional Counsel Listed on Inside Cover]
W LSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
Of Counsel:
JOHN W. ZUCKER
INDIRA SATYENDRA
ABC, INC.
77 West 66th Street
New York, NY 10023
Counsel for ABC, Inc.
ANTHONY M. BONGIORNO
CBS CORPORATION
51 West 52nd Street
New York, NY 10019
Counsel for CBS
Corporation
RICHARD A. BERNSTEIN
NEIL M. ROSENHOUSE
SABIN, BERMANT &
GOULD LLP
4 Times Square, 23rd Fl.
New York, NY 10036
Counsel for Advance
Publications, Inc.
ANDREW GOLDBERG
THE DAILY BEAST
COMPANY LLC
555 West 18th Street
New York, NY 10011
Counsel for The Daily Beast
Company LLC
KAREN KAISER
THE ASSOCIATED PRESS
450 West 33rd Street
New York, NY 10001
Counsel for The Associated
Press
RANDY L. SHAPIRO
BLOOMBERG L.P.
731 Lexington Ave.
New York, NY 10022
Counsel for Bloomberg L.P.
DAVID VIGILANTE
CABLE NEWS NETWORK,
INC.
One CNN Center
Atlanta, GA 30303
Counsel for Cable News
Network, Inc.
MARK H. JACKSON
JASON P. CONTI
JACOB P. GOLDSTEIN
DOW JONES &
COMPANY, INC.
1211 Avenue of the
Americas, 7th Fl.
New York, NY 10036
Counsel for Dow Jones &
Company, Inc.
DAVID M. GILES
THE E.W. SCRIPPS COMPANY
312 Walnut Street, Suite
2800
Cincinnati, OH 45202
Counsel for The E.W.
Scripps Company
PETER SCHEER
FIRST AMENDMENT
COALITION
534 4th Street, Ste. B
San Rafael, CA 94901
Counsel for First
Amendment Coalition
DIANNE BRANDI
FOX NEWS NETWORK, L.L.C.
1211 Avenue of the
Americas, 15th Fl.
New York, NY 10036
Counsel for Fox News
Network, L.L.C.
BARBARA W. WALL
GANNETT CO., INC.
7950 Jones Branch Drive
McLean, VA 22107
Counsel for Gannett Co.,
Inc.
JUAN CORNEJO
THE MCCLATCHY COMPANY
2100 Q Street
Sacramento, CA 95816
Counsel for The McClatchy
Company
JANE E. MAGO
JERIANNE TIMMERMAN
NATIONAL ASSOCIATION OF
BROADCASTERS
1771 N Street, NW
Washington, DC 20036
Counsel for National
Association of Broadcasters
DENISE LEARY
ASHLEY MESSENGER
NATIONAL PUBLIC
RADIO, INC.
1111 North Capital St. NE
Washington, DC 20002
Counsel for National Public
Radio, Inc.
SUSAN E. WEINER
NBCUNIVERSAL
MEDIA, LLC
30 Rockefeller Plaza
New York, NY 10112
Counsel for NBCUniversal
Media, LLC
DAVID E. MCCRAW
THE NEW YORK TIMES
COMPANY
620 Eighth Ave., 18th Fl.
New York, NY 10018
Counsel for The New York
Times Company
MARK H. JACKSON
NEWS CORPORATION
1211 Avenue of the
Americas
New York, NY 10036
Counsel for News
Corporation
KURT WIMMER
COVINGTON & BURLING, LP
1201 Pennsylvania
Avenue, NW
Washington, DC 20004
Counsel for Newspaper
Association of America
KAREN H. FLAX
JEFFREY GLASSER
TRIBUNE COMPANY
435 North Michigan Ave.
Chicago, IL 60611
Counsel for The Tribune
Company
KATHLEEN A. KIRBY
WILEY REIN LLP
1776 K Street, NW
Washington, DC 20006
Counsel for Radio
Television Digital News
Association
JAY KENNEDY
JAMES A. MCLAUGHLIN
THE WASHINGTON POST
1150 15th Street, N.W.
Washington, DC 20071
Counsel for The Washington
Post
BRUCE D. BROWN
GREGG P. LESLIE
THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS
1101 Wilson Blvd, Ste. 1100
Arlington, VA 22209
Counsel for Reporters
Committee for Freedom of
the Press
ROBERT A. FEINBERG
WNET
825 Eighth Avenue
New York, NY 10019
Counsel for WNET
GAIL C. GOVE
REUTERS AMERICA LLC
Three Times Square,
16th Fl.
New York, NY 10036
Counsel for Reuters
America LLC
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE .............................. 1
SUMMARY OF ARGUMENT ................................... 1
ARGUMENT ............................................................. 4
I.
THE DECISION BELOW EXACERBATES
ONGOING CIRUCIT CONFLICTS ......... 4
II.
THIS COURT’S SILENCE HAS HAD
TANGIBLE CONSEQUENCES ............. 14
III.
THE FOURTH CIRCUIT’S DECISION
SHOULD BE REVERSED ...................... 17
CONCLUSION ........................................................ 25
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Ashcraft v. Conoco, Inc.,
218 F.3d 282 (4th Cir. 2000) ...........................6, 24
Bartnicki v. Vopper,
532 U.S. 514 (2001) .......................................22, 23
Branzburg v. Hayes,
408 U.S. 665 (1972) ..................................... passim
Bruno & Stillman, Inc. v. Globe Newspaper Co.,
633 F.2d 583 (1st Cir. 1980) ............................ 7, 8
Cervantes v. Time, Inc.,
464 F.2d 986 (8th Cir. 1972) .............................. 12
Coughlin v. Westinghouse Broadcasting & Cable Inc.,
780 F.2d 340 (3d Cir. 1985) ................................. 9
Farr v. Pitchess,
522 F.2d 464 (9th Cir. 1975) .............................. 12
Goodwin v. United Kingdom,
22 EHRR 123, 143 (1996) .................................. 20
Gonzales v. National Broadcasting Co.,
194 F.3d 29 (2d Cir. 1993) ................................... 8
Hatfill v. Mukasey,
539 F. Supp. 2d 96 (D.D.C. 2008) ...................... 15
iii
In re Grand Jury Proceedings,
810 F.2d 580 (6th Cir. 1987) .............................. 11
In re Grand Jury Subpoenas (Leggett),
29 Media L. Rep. (BNA) 2301 (5th Cir. 2001),
cert. denied, 535 U.S. 1011 (2002) ..................... 14
In re Grand Jury Proceedings (Scarce),
5 F.3d 397 (9th Cir. 1993),
cert. denied, 510 U.S. 1041 (1994) ................12, 14
In re Grand Jury Subpoena, Judith Miller,
397 F.3d 964 (D.C. Cir. 2005),
cert. denied, 545 U.S. 1150 (2005) ..................... 14
In re Grand Jury Subpoena, Judith Miller,
438 F.3d 1141 (D.C. Cir. 2006) ……………passim
In re Grand Jury Subpoenas to Fainaru-Wada &
Williams,
No. CR 06-90225 (JSW), 2006 WL 2734273
(N.D. Cal. Sept. 25, 2006) .................................. 15
In re Petroleum Products Antitrust Litigation,
680 F.2d 5 (2d Cir. 1982) ..................................... 8
In re Request from United Kingdom (Price),
718 F.3d 13 (1st Cir. 2013) .................................. 8
In re Shain,
978 F.2d 850 (4th Cir. 1992) ................................ 6
In re Special Proceedings,
373 F.3d 37 (1st Cir. 2004) ................................ 14
iv
Jaffee v. Redmond,
518 U.S. 1 (1996) ...........................................2, 6, 7
Lee v. Department of Justice,
413 F.3d 53 (D.C. Cir.),
cert. denied, 547 U.S. 1187 (2006) ................14, 15
Martin v. Hunter’s Lessee,
1 Wheat. 304 (1816) ............................................. 4
McIntyre v. Ohio Elections Commission,
514 U.S. 334 (1995) .................................17, 18, 22
McKevitt v. Pallasch,
339 F.3d 530 (7th Cir. 2003) .............................. 11
Miller v. Transamerican Press, Inc.,
621 F.2d 721, modified, 628 F.2d 932
(5th Cir. 1980) .................................................... 10
New York Times Co. v. Gonzales,
459 F.3d 160 (2d Cir. 2006) ............................9, 19
Riley v. City of Chester,
612 F.2d 708 (3d Cir. 1979) ............................9, 19
Saxbe v. Washington Post Co.,
417 U.S. 843 (1974) ............................................ 23
Shoen v. Shoen,
48 F.3d 412 (9th Cir. 1995) ................................ 12
Silkwood v. Kerr-McGee Corp.,
563 F.2d 433 (10th Cir. 1977) ............................ 12
v
United States v. Ahn,
231 F.3d 26 (D.C. Cir. 2000) .............................. 10
United States v. Burke,
700 F.2d 70 (2d Cir. 1983) ..........................8, 9, 19
United States v. Capers,
708 F.3d 1286 (11th Cir. 2013) .......................... 11
United States v. Cuthbertson,
630 F.2d 139 (3d Cir. 1980) ................................. 9
United States v. LaRouche Campaign,
841 F.2d 1176 (1st Cir. 1988) .....................7, 8, 23
United States v. Smith,
135 F.3d 963 (5th Cir. 1998) .............................. 11
United States v. Sterling,
818 F. Supp. 2d 945 (E.D. Va. 2011) ................... 6
United States v. Sterling,
No. 11-5028 (4th Cir. Aug. 26, 2013) ................. 21
United States v. Treacy,
639 F.3d 32 (2d Cir. 2011) ................................... 8
Zerilli v. Smith,
656 F.2d 705 (D.C. Cir. 1981) .......................10, 19
vi
Other Authorities
U.S. Const. amend. I ........................................ passim
28 C.F.R. § 50.10 (2014) .......................................... 20
Federal Rule of Evidence 501 ............................... 6, 9
Paul Farhi, U.S., Media Settle With Wen Ho Lee,
Wash. Post, June 3, 2006 ................................... 15
Potter Stewart, “Or of the Press,” 26 HASTINGS L.J.
631, 635 (1974-75) .............................................. 13
http://www.pulitzer.org/biography/2006-NationalReporting-Group1 .............................................. 16
INTEREST OF AMICI CURIAE
Amici are publishers, broadcasters, cable
networks and associations of journalists and news
media entities. 1 Their employees and members
gather information about matters of public concern
and report it to their fellow citizens. To perform
these tasks effectively, amici are obliged from time to
time to secure information from sources who will
provide it only pursuant to a promise of
confidentiality. The Fourth Circuit’s decision – that
neither the First Amendment nor federal common
law protects that promise in a criminal proceeding
absent evidence of government bad faith – will have
tangible, adverse consequences for the ability of
amici to keep their readers, viewers and listeners
fully informed about the conduct of public affairs. 2
SUMMARY OF ARGUMENT
The law governing the federal claim asserted
by petitioner James Risen in this case – that the
First Amendment and federal common law provide
journalists like him a presumptive protection against
Written consent of all parties to the filing of this brief has
been timely sought and filed with the Clerk as required by Sup.
Ct. R. 37.2(a). No counsel for a party to this action authored
any portion of this brief and no person or entity, other than
amici, made a monetary contribution toward preparation or
submission of this brief.
1
A list of amici is contained in the Appendix to this brief.
Citations to the Appendix to the petition for a writ of certiorari
are designated “App.”
2
2
the compelled disclosure of information about their
confidential sources – is in disarray. The federal
circuits, and federal judges within several circuits,
are in open disagreement concerning whether such
protection exists at all in a variety of contexts,
whether any such protection properly resides in the
First Amendment or at common law, and how it is
calibrated in a given case. At the root of these
conflicts is Branzburg v. Hayes, 408 U.S. 665 (1972),
a decision rendered by a Court that was itself badly
divided. Indeed, the disharmony in the lower courts
centers on a dispute among them concerning both
what Justice Powell actually meant in his concurring
opinion in Branzburg and the extent to which his
views limit the reach of Justice White’s opinion for
the five-justice majority of which Justice Powell was
an indispensable part. And, much of it is the result
of conflicting judicial pronouncements about whether
the Court in Branzburg in fact held there is no
protection available to a journalist at federal
common law and whether, even if it so held, postBranzburg revisions to the Federal Rules of
Evidence, as well as this Court’s decision in Jaffee v.
Redmond, 518 U.S. 1 (1996), open the issue for
reexamination.
In the more than four decades since
Branzburg, this Court has not addressed these
unresolved questions. The passage of time,
unfortunately, has not seen a consensus form in the
lower courts. To the contrary, as this case illustrates,
courts continue to disagree about fundamental issues
at the core of the dispute. Many judges have declared
themselves precluded by Branzburg from even
3
considering the claims raised by journalists in these
cases on their merits, emphasizing that any further
guidance must come from this Court. Under these
circumstances, and apart from the ultimate
resolution of the issues that Risen seeks to raise, it
cannot reasonably be disputed that all interested
parties – including not only Risen, but also the
Government, the criminal defendant in this case, the
journalistic community, and the public – would
benefit from this Court addressing these
fundamental issues about the protections available
to a free press in a democracy.
Finally, the decision reached by the panel
majority in this case – that the public interest in
fostering an informed citizenry plays no legitimate
role in assessing the propriety of a subpoena seeking
to compel a journalist to reveal information about his
confidential sources – cannot be squared with either
our nation’s historical or contemporary conception of
the freedom of the press. If, as amici believe, the
Fourth Circuit’s conclusion is based on an erroneous
reading of Branzburg, the Court should take this
opportunity to make that clear. If, however,
Branzburg is properly read to preclude the kind of
balancing undertaken by Judge Gregory in dissent,
then amici respectfully submit that the time has
come to revisit Branzburg in a manner that takes
appropriate account of the competing interests at
stake.
4
ARGUMENT
I.
THE DECISION BELOW EXACERBATES
ONGOING CIRCUIT CONFLICTS
Since this Court last addressed the subject in
Branzburg, the lower courts have frequently been
called upon to assess whether and to what extent
federal law protects journalists from the compelled
disclosure of information about their confidential
sources. No consensus has emerged among the
circuits on this question; to the contrary, each federal
court of appeals to have addressed the issue has
arrived at a decidedly different answer. As a result,
this Court’s ongoing declination to weigh in cannot
be reconciled with Justice Story’s admonition that
there be “uniformity of decisions throughout the
whole United States, upon all subjects within the
purview of the Constitution.” Martin v. Hunter’s
Lessee, 1 Wheat. 304, 347-48 (1816).
In this case, a divided panel asserted,
unequivocally, that reporters “are entitled to no
special privilege that would allow them to withhold
relevant information about criminal conduct without
a showing of [prosecutorial] bad faith or other such
improper motive,” even when the information sought
is the identity of a confidential source. App.23a. The
panel majority based this determination on its
conclusion that, in Branzburg, this Court “in no
uncertain terms rejected the existence of such a
privilege,” App.15a (citation omitted), and that the
federal circuits are “not at liberty to conclude
otherwise,” App.25a. Thus, the majority asserted,
“[i]f Risen is to be protected from being compelled to
5
testify and give what evidence of crime he possesses,
. . . we believe that decision should rest with the
Supreme Court.” App.46a.
The panel majority acknowledged that, in
Branzburg, Justice Powell’s concurring opinion
emphasized the “limited nature” of the opinion for
the Court authored by Justice White for a five-justice
majority (which included Justice Powell) and
reflected his understanding that, following the
Court’s decision, the “asserted claim to privilege
should be judged on its facts by striking the proper
balance between freedom of the press and the
obligation of all citizens to give relevant testimony”
on a “case-by-case basis.” 408 U.S. at 709-10 (Powell,
J., concurring). See App.22a-23a. Nevertheless, the
panel concluded that Justice Powell’s “concurrence
expresses no disagreement with the majority’s
determination that reporters are entitled to no
special privilege that would allow them to withhold
relevant information about criminal conduct.”
App.23a. To reach this conclusion, the panel
effectively abandoned its own precedent – based on
the same language in Justice Powell’s concurring
opinion – holding that the First Amendment does
presumptively
protect
information
about
a
journalist’s confidential sources from compelled
disclosure. App.25a-30a. 3
As Judge Gregory recognized below, before this case, the
“Fourth Circuit, like our sister circuits, ha[d] applied Justice
Powell’s balancing test in analyzing whether to apply a
reporter’s privilege to quash subpoenas seeking confidential
source information from reporters” in both civil and criminal
3
6
In addition, the panel concluded that, in
Branzburg, this Court both rejected the notion that
protection from compelled disclosure of confidential
sources might be afforded by federal common law,
and foreclosed any further consideration of the issue
by lower federal courts. Specifically, the panel
construed Justice White’s observation in Branzburg
that “[a]t common law, courts consistently refused to
recognize the existence of any privilege authorizing a
newsman to refuse to reveal confidential information
to a grand jury,” 408 U.S. at 685, as a holding
rejecting a common law privilege, despite the fact
that the issue was not even before the Court in that
case. App.37a-38a (“‘[t]he Supreme Court has
rejected a common law privilege for reporters’ and
‘that rejection stands unless and until the Supreme
Court itself overrules that part of Branzburg’”)
(citation omitted). 4 As a result, the panel dismissed
Risen’s contention that “Federal Rule of Evidence
501, as interpreted by the Supreme Court in Jaffee v.
cases. App.87a (Gregory, J., dissenting) (citing cases). See
Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000)
(citing Justice Powell’s opinion for proposition that “reporter’s
claim of privilege should be judged on [a] case-by-case basis”);
United States v. Sterling, 818 F. Supp. 2d 945, 953 (E.D. Va.
2011) (“the only proper reading” of In re Shain, 978 F.2d 850
(4th Cir. 1992), “is that in criminal cases, as in civil actions,”
such balancing is required whenever there is “an agreement to
keep sources confidential”).
The only question before the Court in Branzburg was whether
“requiring newsmen to appear and testify before state or federal
grand juries abridges the freedom of speech and press
guaranteed by the First Amendment.” 408 U.S. at 679 n.16.
4
7
Redmond, 518 U.S. 1 (1996), grants us the authority
to reconsider the question and now grant the
privilege.” App.33a.
As Judge Gregory explained below, these
rulings each stand in direct conflict with the
decisions of several other federal circuits in multiple
ways. What is most striking, however, is that the
courts and individual judges on opposite sides of this
decisional divide not only ground their disparate
holdings firmly in their own interpretations of
Branzburg, they also uniformly emphasize that, until
this Court revisits these issues, they have no latitude
to reach a different result.
Thus, in the Fourth Circuit today, a journalist
is protected by a qualified privilege grounded in the
First Amendment, as construed by Justice Powell in
Branzburg, when seeking to shield confidential
sources and otherwise unpublished information in
civil cases but enjoys no such protection, absent
evidence of prosecutorial bad faith, in criminal
proceedings.
And
based
on
that
court’s
understanding of Branzburg, there is no common law
protection at all afforded to journalists in such
circumstances in either criminal or civil proceedings.
In the First Circuit, in contrast, a
“constitutionally sensitized balancing process”
derived from Justice Powell’s opinion is applied to
subpoenas seeking to compel the disclosure of even
non-confidential information in both civil and
adversarial criminal proceedings. Bruno & Stillman,
Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-96 &
n.13 (1st Cir. 1980). See United States v. LaRouche
8
Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988). In
requiring that such balancing take place in every
case except non-adversarial proceedings akin to the
grand jury investigations at issue in Branzburg, see
In re Request from United Kingdom (Price), 718 F.3d
13, 23 (1st Cir. 2013), the First Circuit has explained
that “[w]hether or not the process of taking First
Amendment concerns into consideration can be said
to represent recognition by the Court of a
‘conditional’ or ‘limited’ privilege is . . . largely a
question of semantics,” Bruno & Stillman, Inc., 633
F.2d at 595.
In the Second Circuit, reporters are similarly
protected by a presumptive privilege in both civil and
adversarial criminal proceedings, although that
circuit – while also grounding its decision in Justice
Powell’s concurring opinion in Branzburg – has not
decided whether the privilege is derived from the
First Amendment or common law. See United States
v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983); United
States v. Treacy, 639 F.3d 32, 42 (2d Cir. 2011); In re
Petroleum Prods. Antitrust Litig., 680 F.2d 5, 8 & n.9
(2d Cir. 1982) (because “Justice Powell cast the
deciding vote” in Branzburg, his reservations about
the court’s opinion “are particularly important in
understanding the decision”). The scope of the
protection available in the Second Circuit varies
depending on whether the information sought is the
identity of a confidential source or unpublished, nonconfidential journalistic work product. See Gonzales
v. Nat’l Broad. Co., 194 F.3d 29, 35 (2d Cir. 1993).
Moreover, although the judges of that circuit “see no
legally-principled reason for drawing a distinction
9
between civil and criminal cases when considering
whether the reporter’s interests in confidentiality
should yield to the moving party’s need for probative
evidence,” Burke, 700 F.2d at 77, they have not
reached consensus as to whether such protection is
available when the challenged subpoena is issued by
a grand jury, see New York Times Co. v. Gonzales,
459 F.3d 160, 172-73 (2d Cir. 2006).
In the Third Circuit, reporters seeking to
safeguard the identities of confidential sources and
unpublished work product in both civil and criminal
cases are protected by a privilege derived from
federal common law and grounded in Rule 501. See
United States v. Cuthbertson, 630 F.2d 139, 147 (3d
Cir. 1980); Riley v. City of Chester, 612 F.2d 708, 71415 (3d Cir. 1979) (“[t]he legislative history of Rule
501 manifests that its flexible language was designed
to encompass, inter alia, a reporter’s privilege not to
disclose a source”). In the Third Circuit, Branzburg
has not only posed no barrier to recognition of a
common-law privilege, the necessity of such a
privilege has been held to be the essential lesson of
Justice Powell’s opinion. See Coughlin v.
Westinghouse Broad. & Cable Inc., 780 F.2d 340, 350
& n.14 (3d Cir. 1985) (proceeding on “case-by-case
basis, balancing the reporters’ rights against the
interests of those seeking information” is “precisely
the course” Justice Powell indicated “that lower
courts should take”).
For its part, the D.C. Circuit has been unable
to decide whether there is a common-law privilege,
finding itself at loggerheads based on its judges’
10
conflicting views concerning whether such a privilege
is foreclosed by Branzburg. See In re Grand Jury
Subpoena, Judith Miller, 438 F.3d 1141, 1154 (D.C.
Cir. 2006) (“Miller”) (Sentelle, J., concurring)
(Branzburg is “as dispositive of the question of
common law privilege as it is of a First Amendment
privilege”); id. at 1160 (Henderson, J., concurring)
(asserting circuit courts are “not bound by
Branzburg’s commentary on the state of the common
law in 1972” but declining to decide whether to
recognize common law privilege); id. at 1170 (Tatel,
J., concurring) (applying common law privilege in
grand jury context). At the same time, based on its
reading of Justice Powell’s opinion, that circuit has
embraced a privilege grounded in the First
Amendment that applies in both civil and
adversarial criminal proceedings. See Zerilli v.
Smith, 656 F.2d 705, 712 (D.C. Cir. 1981); United
States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000). It
has, however, considered itself bound by Branzburg
to reject any such First Amendment-based privilege
“protecting journalists from appearing before a grand
jury or from testifying before a grand jury.” Miller,
438 F.3d at 1147.
The remaining circuits are similarly all over
the lot. The Fifth Circuit has recognized a privilege,
grounded
in
the
First
Amendment,
that
presumptively protects both confidential sources and
non-confidential journalistic work product in civil
cases, but it has rejected any such privilege in
criminal
cases
involving
non-confidential
information. See Miller v. Transamerican Press, Inc.,
621 F.2d 721, modified, 628 F.2d 932 (5th Cir. 1980);
11
United States v. Smith, 135 F.3d 963, 972 (5th Cir.
1998). It has, however, signaled that the outcome
may be different in criminal cases in which the
information sought is the identity of a confidential
source. Id. (“[T]he existence of a confidential
relationship that the law should foster is critical to
the establishment of a privilege.”). Since its creation
as a court distinct from the Fifth, the Eleventh
Circuit has gone its own way, holding that “[o]ur
Circuit recognizes a qualified privilege for
journalists, allowing them to resist compelled
disclosure of their professional newsgathering
efforts. This privilege shields reporters in both
criminal and civil proceedings.” United States v.
Capers, 708 F.3d 1286, 1303 (11th Cir. 2013).
The Sixth Circuit has considered only the
availability of a First Amendment-based privilege
and only in the grand jury context, considering itself
bound by Branzburg to reject it in that circumstance.
In re Grand Jury Proceedings, 810 F.2d 580, 583-84
(6th Cir. 1987). The Seventh Circuit has similarly
addressed the subject directly only once, holding that
no First Amendment-based privilege protects a
journalist from the compelled disclosure of nonconfidential journalistic work product in criminal
cases. See McKevitt v. Pallasch, 339 F.3d 530, 53133 (7th Cir. 2003). That circuit has, however,
indicated that its conclusion would likely be different
“[w]hen the information in the reporter’s possession”
comes “from a confidential source” and it has
expressed a preference for grounding the privilege in
common law as opposed to the First Amendment. Id.
at 533; see id. at 532 (emphasizing “important point”
12
that “Constitution is not
evidentiary privileges”).
the
only
source
of
Finally, the Ninth Circuit recognizes a
qualified privilege, grounded in the First
Amendment, that protects both the identities of
confidential
sources and unpublished,
nonconfidential materials in civil and adversarial
criminal proceedings. See Farr v. Pitchess, 522 F.2d
464, 466, 469 (9th Cir. 1975); Shoen v. Shoen, 48
F.3d 412, 418 (9th Cir. 1995). Specifically, it has
determined, based on Justice Powell’s opinion, that
“application of the Branzburg holding to non-grand
jury cases seems to require that the claimed First
Amendment privilege and the opposing need for
disclosure be judicially weighed in light of the
surrounding facts and a balance struck to determine
where lies the paramount interest.” Farr, 522 F.2d at
467-68. See In re Grand Jury Proceedings (Scarce), 5
F.3d 397, 401-02 (9th Cir. 1993) (finding no privilege
in grand jury context). 5
This lack of consensus among the circuits has
obvious consequences. In this case, for example,
Risen has been authoritatively informed by the
Fourth Circuit that he has no lawful ability to
protect the identities of his confidential sources in
response to a subpoena issued by a federal court
sitting in Virginia. If that same subpoena had been
The Eighth Circuit has not definitively addressed the issue,
see Cervantes v. Time, Inc., 464 F.2d 986, 992 n.9 (8th Cir.
1972), while the Tenth has asserted, in a civil case, that the
privilege’s existence is “no longer in doubt,” Silkwood v. KerrMcGee Corp., 563 F.2d 433, 437 (10th Cir. 1977).
5
13
issued by a federal court in Delaware, less than 120
miles to the north, he would have enjoyed a
presumptive privilege grounded in federal common
law as construed by the Third Circuit. And, if the
subpoena had been issued by a federal court in
Georgia, some 300 miles to the south, he would have
been presumptively protected by the First
Amendment-based privilege recognized in the
Eleventh Circuit.
It has been more than forty years since this
Court last spoke to these issues. The absence of
national uniformity on such important questions of
federal constitutional and common law is a direct
result of the difficulty the circuits have encountered
in divining the meaning of Justice Powell’s
“enigmatic” opinion in Branzburg, 408 U.S. at 725
(Stewart, J., dissenting), 6 and its impact on a
majority opinion, “the lessons” of which are “about as
clear as mud.” App. 87a (Gregory, J., dissenting). At
this juncture, only further guidance from this Court
can bring about the uniform application of federal
law that prospective litigants are entitled to expect.
See Potter Stewart, “Or of the Press,” 26 HASTINGS L.J. 631,
635 (1974-75) (describing Branzburg as having been decided “by
a vote of four and a half to four and a half”).
6
14
II.
THIS COURT’S SILENCE HAS
TANGIBLE CONSEQUENCES
HAD
Since Branzburg¸ this Court has had multiple
opportunities to assess the protections available to
journalists against the compelled disclosure of
information about their confidential sources. 7 It has,
to date, chosen not take advantage of any of them.
Initially, the Court’s declination to do so allowed
lower courts to grapple with these issues in the first
instance and, hopefully, to reach a consensus that
would obviate the need for further guidance. As the
years have passed, however, no such consensus has
emerged. Instead, this Court’s silence in the face of
the conflicts that have arisen among the circuits has
had tangible consequences for journalists and for the
public that depends on the information they gather
and report.
In the most concrete terms, since 2000, several
journalists subpoenaed in jurisdictions that have
rejected their claims of privilege have elected to go to
prison rather than break their promises to their
confidential sources. 8 Others have been subjected to
See, e.g., In re Grand Jury Subpoena, Judith Miller, 397 F.3d
964 (D.C. Cir.), cert. denied, 545 U.S. 1150 (2005); Lee v. Dep’t of
Justice, 413 F.3d 53 (D.C. Cir. 2005), cert. denied, 547 U.S. 1187
(2006); Scarce, 5 F.3d 397 (9th Cir. 1993), cert. denied, 510 U.S.
1041 (1994); In re Grand Jury Subpoenas (Leggett), 29 Media L.
Rep. (BNA) 2301 (5th Cir. 2001) (unpublished), cert. denied, 535
U.S. 1011 (2002).
7
See, e.g., Leggett, 29 Media L. Rep. (BNA) 2301; In re Special
Proceedings, 373 F.3d 37 (1st Cir. 2004); In re Grand Jury
Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005); see
8
15
monetary sanctions. In one such case, five journalists
were ordered to pay daily fines when they declined to
disclose the identities of confidential sources that
provided information about a nuclear scientist
charged with espionage. See Lee v. Dep’t of Justice,
413 F.3d 53, 57 (D.C. Cir. 2005), cert. denied, 547
U.S. 1187 (2006). Enforcement of those fines was
avoided only because the underlying case against
several federal agencies was settled – a settlement
that included payment of substantial sums by the
journalists’ respective news organizations. The news
organizations contributed to the settlement, not
because there was any suggestion that their
reporting had been inaccurate or that it had not
addressed matters of important public concern, but
rather because it was the only way for their reporters
to both honor their promises to their sources and to
avoid disobeying the court’s order. See Paul Farhi,
U.S., Media Settle With Wen Ho Lee, Wash. Post,
June 3, 2006, at A01. 9
also In re Grand Jury Subpoenas to Fainaru-Wada
&
Williams, No. CR 06-90225 (JSW), 2006 WL 2734273 (N.D. Cal.
Sept. 25, 2006) (two San Francisco Chronicle reporters
sentenced to 18 months in prison for declining to identify their
confidential sources of information about steroid usage in
professional sports; sentences ultimately vacated when
government secured information by other means).
See also Hatfill v. Mukasey, 539 F. Supp. 2d 96, 106-07
(D.D.C. 2008) (imposing escalating fines, which were ultimately
vacated following settlement of underling case, on USA Today
reporter who declined to identify confidential source of
information about 2001 anthrax mailing and prohibiting her
9
16
The point here is not that there will never be
circumstances in which, when striking the
appropriate balance in a given case, a journalist’s
claim to privilege ought to yield. Rather, these cases
demonstrate that (1) in order to fulfill their mission
of informing the public, journalists (and their
employers) have paid a significant price for honoring
their commitments to their sources, and (2) court
rulings requiring them to do so have invariably been
based on a construction of governing constitutional
and common law that has badly divided the lower
courts and on which this Court has not spoken in 42
years. Of equal significance, the lack of uniformity
across the federal courts – in and of itself – has an
inhibiting effect on the gathering and reporting of
news about matters of public concern precisely
because neither sources nor reporters and editors
can safely predict what law will apply in a manner
that allows them to make informed decisions about
what legal protection, if any, will be available to
them.
In this case, Risen, a recipient of the Pulitzer
Prize for his groundbreaking reporting on
government surveillance, 10 faces a contempt citation
if he honors a promise of confidentiality he made to a
source in exchange for information about a matter of
analogous public importance. If nothing else, before
being put to this most difficult choice, he is entitled
from accepting contributions, from her employer or otherwise,
to pay them).
See http://www.pulitzer.org/biography/2006-NationalReporting-Group1.
10
17
to an authoritative statement by this Court of the
extent to which his ability to secure such information
and share it with the American public is protected by
federal law.
III.
THE FOURTH CIRCUIT’S
SHOULD BE REVERSED
DECISION
The Fourth Circuit’s conclusion in this case –
that a journalist has no cognizable right to protection
from compelled disclosure of confidential sources in a
criminal proceeding absent evidence of government
bad faith – cannot be squared either with our
Nation’s founding conception of the freedom of the
press or with the role that promises of confidentiality
have always played in contributing to an informed
citizenry. There can be little question that, when the
First Amendment was crafted, both the Framers and
the broader citizenry reflexively understood the
“freedom of the press” to include a journalist’s or
publisher’s presumptive right to protect the
identities of those who supplied them with
information for dissemination to the public. Indeed,
the incident credited with establishing uniquely
American principles of freedom of the press – the
prosecution of Jon Peter Zenger in 1735 – arose from
Zenger’s refusal to identify the source(s) of material
he published in his newspaper. Even after Zenger
was charged criminally as the publisher, he
maintained his right to refuse to disclose his
“sources.” McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 361 (1995) (Thomas, J., concurring).
The then-common understanding that the law
should protect the right that Zenger asserted was
18
unquestionably on the minds of the Framers when
they included the freedom of the press in the First
Amendment. In 1779, when some members of the
Continental Congress sought to compel a newspaper
publisher to identify the author of a column
criticizing that body, arguments that “‘[t]he liberty of
the Press ought not to be restrained’” in that manner
prevailed, and Congress declined to compel
disclosure. Id. at 361-62 (citation omitted). As Justice
Thomas concluded in McIntyre, based on these
episodes and others, the Framers unanimously
“believed that the freedom of the press included the
right to publish without revealing the author’s
name.” Id. at 367.
In short, the Framers understood the value of
protecting such promises of confidentiality, especially
when they were made in the cause of securing
information for dissemination to the public about its
government, and they did so even when the
subpoenaed journalist or publisher possessed firsthand knowledge of an allegedly criminal act. Zenger,
after all, was an “eyewitness” to the events that led
directly to the allegedly criminal criticisms of
government leveled by the authors he published –
he personally acquired their purportedly seditious
works from them.
In the modern era, the common understanding
of what we mean by the “freedom of the press”
similarly includes the presumptive right to protect
confidential sources from compelled disclosure. With
the exception of those courts that, like the Fourth
Circuit below, feel constrained by Branzburg to hold
19
otherwise,
federal
judges have
consistently
recognized the obvious – there is a significant public
interest in protecting reporters from compelled
disclosure of their confidential sources regardless of
whether that interest is grounded in the First
Amendment or in federal common law. 11 From the
perspective of the reasonably informed citizen, there
has never been any real question that such
“protection exists. It is palpable; it is ubiquitous; it
is widely relied upon; it is an integral part of the way
in which the American public is kept informed and
therefore of the American democratic process.”
Gonzales, 459 F.3d at 181 (Sack, J., dissenting).
Indeed, putting aside its position in this case,
the Department of Justice itself has consistently
acknowledged
that
compelled
disclosure
of
confidential sources threatens the freedom of the
press. Its own guidelines for issuing subpoenas to the
media reflect the express intent to “provide
protection to members of the news media from
certain law enforcement tools, whether criminal or
civil, that might unreasonably impair ordinary
See, e.g., Riley, 612 F.2d at 714 (“The interrelationship
between newsgathering, news dissemination and the need for a
journalist to protect his or her source is too apparent to require
belaboring.”); Burke, 700 F.2d at 77 (protection against
compelled disclosure of confidential sources reflects “a
paramount public interest in the maintenance of a vigorous,
aggressive and independent press capable of participating in
robust, unfettered debate over controversial matters, an
interest which has always been a principal concern of the First
Amendment”); Zerilli, 656 F.2d at 710-11 (“Compelling a
reporter to disclose the identity of a confidential source raises
obvious First Amendment problems.”).
11
20
newsgathering activities” 28 C.F.R. § 50.10 (2014).
As the Department has recently reaffirmed, there
must be substantive limits on the Government’s
ability to compel reporters to disclose their
confidential sources “because freedom of the press
can be no broader than the freedom of members of
the news media to investigate and report the news.”
Id.
The states similarly understand that the
“freedom of the press” encompasses a presumptive
right to protect confidential sources. Forty-nine
states and the District of Columbia recognize some
form of reporters’ privilege. App.106a-108a (Gregory,
J., dissenting). Of those jurisdictions, thirty-nine
have now enacted “shield laws” affording such
protection in statutory form. App.106a. Although
these statutes vary in scope, they reflect a clear
national consensus that freedom of the press
necessarily encompasses at least some protection
against
compelled
disclosure
of
journalists’
12
confidential sources.
Against this backdrop, it is difficult to
understand how the law can be construed, as the
Fourth Circuit now has, to foreclose any
consideration of the press’s and public’s interests in
assessing whether a subpoena issued in a criminal
This understanding is shared by democracies around the
world. Ironically, those nations, which generally have adopted
less robust views of press freedom than the United States, have
declared in their law that the presumptive right to protect
confidential sources is an inherent aspect of the freedom of the
press. See, e.g., Goodwin v. United Kingdom, 22 EHRR 123, 143
(1996).
12
21
proceeding and seeking the identity of a confidential
source can lawfully be enforced. Simply put, whether
rooted in the First Amendment or in the common
law, our national commitment to a free press and to
the democratic values it serves dictates that those
interests must, at a minimum, be weighed in every
case. Because the Fourth Circuit determined that
Branzburg precluded it from undertaking any such
balancing, under either the First Amendment or at
common law, its decision is inconsistent with our
historical conception of freedom of the press.
The panel majority’s conclusion cannot be
justified, as the Government argued it could below,
on the ground that the Court in Branzburg relied, in
part, on the fact that the reporters there were
“eyewitnesses” to the criminal conduct of their
sources. See Dkt. 94, United States v. Sterling, No.
11-5028, at 11 (4th Cir. Aug. 26, 2013). There is a
material distinction between the eyewitness
observations at issue in Branzburg and what is
before the Court in this case. In Branzburg, reporters
were alleged to have witnessed their “sources”
engaging in criminal conduct wholly separate from
the communication of newsworthy information about
the operations of government, namely “synthesizing
hashish from marijuana” and the “use and sale of
drugs.” 408 U.S. at 667-76. In this case, in contrast,
the only allegedly criminal act to which Risen
allegedly was an eyewitness was the conduct of his
confidential source(s) in providing information to
him about a matter of unquestioned public concern
for ultimate dissemination to the public. In such
circumstances, where the crime alleged is the
22
disclosure of information, and that information
involves
accounts
of
apparent
government
malfeasance or other matters of public concern, a
journalist’s “eyewitness” knowledge of his source’s
allegedly criminal conduct, standing alone, cannot be
enough to divest the journalist of any right to protect
his newsgathering activities from government
compulsion. See McIntyre, 514 U.S. at 367 (Thomas,
J., concurring). 13
There are, to be sure, several competing
considerations, including whether the underlying
proceeding is civil or criminal and whether the
journalist is putatively an eyewitness to a crime.
These, however, are only two of several potentially
relevant factors; they are not, as the Government
contended below, grounds on which to reject a
qualified privilege entirely. Any reasonable balance
also must include consideration of the public interest
in the journalism made possible by the promise of
confidentiality and whether the source’s identity is
either ascertainable by other means or is not
otherwise critical to a successful prosecution.
See also Miller, 438 F.3d at 1175 (Tatel, J., concurring) (in socalled “leak cases” in which the journalist is the only witness
with direct evidence of his source’s conduct, courts must “weigh
the public interest in compelling disclosure . . . against the
public interest in newsgathering”). Cf. Bartnicki v. Vopper, 532
U.S. 514, 535 (2001) (when assessing a journalist’s potential
liability, the unlawful conduct of a third party from whom he
acquired information “does not suffice to remove the First
Amendment shield from speech about a matter of public
concern”).
13
23
Judge Gregory advocated just such balancing
below, as have other circuit courts and judges
throughout the country. See App. 90a (Gregory, J.,
dissenting) (balancing multiple factors, including
“the harm caused by the public dissemination of the
information, and the newsworthiness of the
information conveyed”); LaRouche Campaign, 841
F.2d at 1177 (recognizing “duty to weigh the
competing First Amendment interests . . . and the
fair trial/confrontation interests of defendants not
only generically but as they exist in the instant
case”); Miller, 438 F.3d at 1175 (Tatel, J., concurring)
(courts should properly “weigh the public interest in
compelling disclosure, measured by the harm the
leak
caused, against the public interest in
newsgathering,
measured
by
the
leaked
information’s value”). Whether grounded in the
Constitution itself or in federal common law, such an
approach strikes “a reasonable balance” between the
competing claims, one that recognizes there is an
important First Amendment interest at stake,
Bartnicki, 532 U.S. at 536 (Breyer, J., concurring),
and that reflects the kind of weighing of the
competing
interests
that
Justice
Powell
contemplated in Branzburg, see Saxbe v. Washington
Post Co., 417 U.S. 843, 859-60 (1974) (Powell, J.,
dissenting) (“a fair reading of the majority’s analysis
in Branzburg makes plain that the result hinged on
an assessment of the competing societal interests
involved in that case rather than on any
determination that First Amendment freedoms were
not implicated”).
24
In the last analysis, if Branzburg in fact
contemplates the balancing of the competing
interests on a case-by-case basis that Justice Powell
envisioned, then the Fourth Circuit majority erred
when it concluded that it was bound by that decision
to reject any claim for protection from the compelled
disclosure of confidential sources in a criminal case
such as this one absent evidence of prosecutorial bad
faith. If, however, that is in fact what this Court held
in Branzburg, and that case is properly read to
preclude the kind of balancing undertaken by Judge
Gregory in his dissent below, then amici respectfully
submit that the time has come to revisit that
decision in a manner that takes appropriate account
of all of the competing interests at stake. 14
In this case, the trial judge weighed the competing interests
based on her extensive review of and familiarity with the record
evidence and reasonably concluded that the balance tipped in
favor of Risen. Although that decision is properly reviewed only
for an abuse of discretion, see Ashcraft, 218 F.3d at 287, the
panel majority undertook its own de novo review of the record
evidence and, without paying so much as lip service to the
“abuse of discretion” standard, asserted that, even if Risen did
shelter under a qualified privilege, that privilege had been
overcome. Had the panel majority asked the right question –
i.e., did the trial judge abuse her discretion in reaching a
contrary conclusion? – it would have been obliged to answer it
differently. As a result, the fact that the panel purported to
offer an alternative basis for its decision, based on the
assumption that Risen was entitled to the presumptive
protection he sought, should not deter this Court from
considering the important federal issues raised by this case.
14
25
CONCLUSION
For the foregoing reasons, the petition should
be granted.
Respectfully submitted,
LEE LEVINE
Counsel of Record
KATHERINE M. BOLGER
JULIE B. EHRLICH
LEVINE SULLIVAN KOCH &
SCHULZ, LLP
1899 L STREET, NW, SUITE 200
WASHINGTON, DC 20036
(202) 508-1100
EMAIL: llevine@lskslaw.com
Counsel for Amici Curiae
March 26, 2014
APPENDIX
APPENDIX
ABC, Inc., alone or through its subsidiaries,
owns and operates, inter alia, ABC News,
abcnews.com, and local broadcast television stations
which regularly gather and report news to the public.
Programs produced and disseminated by ABC News
include World News with Diane Sawyer, 20/20,
Nightline, Good Morning America and This Week.
Advance Publications, Inc., directly and
through its subsidiaries, publishes 18 magazines
with nationwide circulation, newspapers in over 20
cities and weekly business journals in over 40 cities
throughout the United States. It also owns many
Internet sites and has interests in cable systems
serving over 2.3 million subscribers.
The Associated Press (“AP”) is a news
cooperative organized under the Not-for-Profit
Corporation Law of New York, and owned by its
1,500 U.S. newspaper members. The AP’s members
and subscribers include the nation’s newspapers,
magazines, broadcasters, cable news services and
Internet content providers. The AP operates from
300 locations in more than 100 countries. On any
given day, AP’s content can reach more than half of
the world’s population.
Bloomberg L.P. operates Bloomberg News, a 24hour global news service based in New York with
more than 2,400 journalists in more than 150
bureaus around the world. Bloomberg supplies realtime business, financial, and legal news to the more
than 319,000 subscribers to the Bloomberg
Professional service world-wide and is syndicated to
2a
more than 1000 media outlets across more than 60
countries. Bloomberg television is available in more
than 340 million homes worldwide and Bloomberg
radio is syndicated to 200 radio affiliates nationally.
In addition, Bloomberg publishes Bloomberg
Businessweek, Bloomberg Markets and Bloomberg
Pursuits magazines with a combined circulation of
1.4 million readers and Bloomberg.com and
Businessweek.com receive more than 24 million
visitors each month. In total, Bloomberg distributes
news, information, and commentary to millions of
readers and listeners each day, and has published
more than one hundred million stories.
Cable News Network, Inc. (CNN) is a
subsidiary of Turner Broadcasting System, Inc., a
Time Warner Inc. company. CNN is a portfolio of
two dozen news and information services across
cable, satellite, radio, wireless devices and the
Internet in more than 200 countries and territories
worldwide. Domestically, CNN reaches more
individuals on television, the web and mobile devices
than any other cable TV news organization in the
United States; internationally, CNN is the most
widely distributed news channel reaching more than
271 million households abroad; and CNN Digital is a
top network for online news, mobile news and social
media. Additionally, CNN Newsource is the world’s
most extensively utilized news service partnering
with hundreds of local and international news
organizations around the world.
3a
CBS Corporation is a mass media company
with operations in virtually every field of media and
entertainment, including but not limited to broadcast
television (CBS and The CW – a joint venture
between CBS Corporation and Warner Bros.
Entertainment),
cable
television
(Showtime
Networks, Smithsonian Networks and CBS Sports
Network), local television (CBS Television Stations),
radio (CBS Radio) and publishing (Simon &
Schuster).
The Daily Beast Company LLC publishes
thedailybeast.com, which was founded in 2008 as the
vision of Tina Brown and IAC Chairman Barry
Diller. Curated to avoid information overload, the
site is dedicated to breaking news and sharp
commentary. The Daily Beast is the winner of two
consecutive Webby awards for “Best News” site and
regularly attracts more than 15 million unique
online visitors a month.
Dow Jones & Company, Inc., a global provider
of news and business information, is the publisher of
The Wall Street Journal, Barron’s, MarketWatch,
Dow Jones Newswires, and other publications. Dow
Jones maintains one of the world’s largest
newsgathering operations, with more than 1,800
journalists in more than fifty countries publishing
news in several different languages. Dow Jones also
provides information services, including Dow Jones
Factiva, Dow Jones Risk & Compliance, and Dow
Jones VentureSource.
Dow Jones is a News
Corporation company.
4a
The E.W. Scripps Company is a diverse, 131year-old media enterprise with interests in television
stations, newspapers, local news and information
websites and licensing and syndication.
The
company’s portfolio of locally focused media
properties includes:
19 TV stations (ten ABC
affiliates, three NBC affiliates, one independent and
five
Spanish-language
stations);
daily
and
community newspapers in 13 markets; and the
Washington-based Scripps Media Center, home of
the Scripps Howard News Service.
First Amendment Coalition is a nonprofit
public interest organization dedicated to advancing
free speech and open-government rights.
A
membership organization, the Coalition’s activities
include educational and informational programs,
strategic litigation to enhance First Amendment and
access rights for the largest number of citizens, legal
information
and
consultation
services,
and
legislative oversight of bills affecting free speech.
The Coalition’s members are newspapers and other
news organizations, bloggers, libraries, civic
organizations, academics, freelance journalists,
community activists and ordinary individuals
seeking help in asserting rights of citizenship. The
Coalition’s offices are in San Rafael, California.
Fox News Network, L.L.C. owns and operates
the national cable news network, the Fox News
Channel, which reaches approximately 98 million
subscribers in the United States. It also owns and
operates the Fox Business Network, the Fox News
Edge, the Sunday morning political talk program Fox
5a
News Sunday, the websites FoxNews.com and
FoxBusiness.com, and the national Fox News Radio
Network.
Gannett Co., Inc. is an international news and
information company that publishes more than 80
daily newspapers in the United States – including
USA TODAY – which reach 11.6 million readers
daily. The company’s broadcasting portfolio includes
more than 40 TV stations, reaching approximately
one-third of all television households in America.
Each of Gannett’s daily newspapers and TV stations
operates Internet sites offering news and advertising
that is customized for the market served and
integrated with its publishing or broadcasting
operations.
The McClatchy Company owns 30 daily
newspapers in 29 U.S. markets, including The
Sacramento Bee, The Fresno Bee, and The Merced
Sun-Star, as well as The Miami Herald, The StarTelegram of Fort Worth, The Charlotte Observer, and
45 non-daily papers. In each of its daily newspaper
markets, McClatchy operates the leading local
website, offering readers information, comprehensive
news, advertising, e-commerce and other services.
National
Association
of
Broadcasters
(“NAB”), organized in 1922, is a non-profit
incorporated association of radio and television
broadcast stations and networks. NAB membership
includes more than 6,300 radio stations, 1,300
television stations, and the major commercial
broadcast networks.
6a
National Public Radio, Inc. is an awardwinning producer and distributor of noncommercial
news programming. A privately supported, not-forprofit membership organization, NPR serves a
growing audience of more than 26 million listeners
each week by providing news programming to 285
members’ stations that are independently operated,
noncommercial public radio stations. In addition,
NPR provides original online content and audio
streaming of its news programming.
NPR.org
provides news and cultural programming including
audio archives of past programming.
NBCUniversal Media, LLC is one of the world’s
leading media entertainment companies in the
development, production and marketing of news,
entertainment and information to a global audience.
Among other businesses, NBCUniversal Media, LLC
owns and operates the NBC television network, the
Spanish-language television network Telemundo,
NBC News, several news and entertainment
networks, including MSNBC and CNBC, and a
television-stations group consisting of owned-andoperated television stations that produce substantial
amounts of local news, sports and public affairs
programming. NBC News produces the Today show,
NBC Nightly News with Brian Williams, Dateline
NBC and Meet the Press.
The New York Times Company is the owner of
The New York Times and the International New York
Times, formerly the International Herald Tribune.
7a
News Corporation is a global, diversified media
and information services company focused on
creating and distributing authoritative and engaging
content to consumers throughout the world. The
company comprises leading businesses across a
range of media, including: news and information
services, digital real estate services, book publishing,
digital education, and sports programming and payTV distribution.
Newspaper Association of America (NAA) is
a non-profit organization representing the interests
of more than 2,000 newspapers in the United States
and Canada. NAA members account for nearly 90
percent of the daily newspaper circulation in the
United States and a wide range of non-daily
newspapers. One of NAAs key strategic priorities is
to advance newspapers’ First Amendment interests,
including the ability to gather and report the news.
Radio Television Digital News Association
(RTDNA) is based in Washington, D.C., and is the
world’s largest professional organization devoted
exclusively to electronic journalism.
RTDNA
represents local and network news directors and
executives, news associates, educators and students
in broadcasting, cable and other electronic media in
over 30 countries.
RTDNA is committed to
encouraging excellence in electronic journalism and
upholding the First Amendment.
The Reporters Committee for Freedom of
the Press is a voluntary, unincorporated association
of reporters and editors that works to defend First
Amendment rights and freedom of information
8a
interests of the news media.
The Reporters
Committee has provided representation, guidance
and research in First Amendment and Freedom of
Information Act litigation since 1970. As advocates
for the rights of the news media and others who
gather and disseminate information to the public,
the Reporters Committee has a strong interest in
ensuring that journalists’ ability to credibly promise
confidentiality to sources remains uninhibited.
Reuters America LLC (Reuters) is the world’s
largest independent international news agency,
reaching more than a billion people every day.
Through text, video and pictures wires, as well as
online and mobile platforms, it provides real-time
news and information to newspapers, television and
cable networks, radio stations and websites around
the world. Its coverage includes international
politics, business, sports and entertainment; Reuters
also publishes market data and intelligence to global
business and finance consumers.
Tribune Company operates broadcasting,
publishing and interactive businesses engaging in
the coverage and dissemination of news and
entertainment programming. On the broadcasting
side, it owns 42 television stations, a radio station, a
24-hour regional cable news network and
“Superstation” WGN America. On the publishing
side, Tribune publishes eight daily newspapers –
Chicago Tribune, Hartford (Conn.) Courant, Los
Angeles Times, Orlando Sentinel (Central Florida),
The (Baltimore) Sun, The (Allentown, Pa.) Morning
9a
Call, (Hampton Roads, Va.) Daily Press and SunSentinel (South Florida).
WP Company LLC (d/b/a The Washington
Post) publishes The Washington Post, one of the
nation’s leading newspapers, as well as a news
website, www.washingtonpost.com, that is visited by
more than 20 million readers per month.
WNET is a major producer of broadcast and
online media for local, national and international
audiences, creating award-winning content in the
areas of arts and culture, news and public affairs,
science and natural history, documentaries, and
children’s programming.
WNET is the parent
company of THIRTEEN, New York’s flagship public
media provider, and also produces and presents such
acclaimed series as PBS NewsHour Weekend and
NATURE.